Danish Acres of Idaho, LLC v. Phillips et al

Filing 35

MEMORANDUM DECISION AND ORDER granting 33 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANISH ACRES OF IDAHO, LLC, an
Idaho Limited Liability Company,

Case No. 4:11-cv-00495-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
PETER PHILLIPS, et. al.,
Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Motion and Memorandum of Costs and
Attorneys Fees (Dkt. 33). For the reasons explained below, the Court will grant the
motion.
ANALYSIS
On January 16, 2013, the Court granted summary judgment in favor of Danish
Acres. In its Order, the Court indicated that Danish Acres was entitled to judgment
against Phillips in the amount of $167,141.72 plus interest. Subsequently, the Court also
entered a decree of foreclosure in favor of Danish Acres and against Phillips. Danish
Acres now asks for its attorney’s fees and costs. Phillips did not respond to the motion,
and the deadline for filing a response has passed.
Idaho law governs the award of attorney fees in this matter because federal courts
must follow state law as to attorney fees in diversity actions. Interform Co. v. Mitchell,
MEMORANDUM DECISION AND ORDER - 1

575 F.2d 1270, 1280 (9th Cir. 1978) (applying Idaho law). Danish Acres requests
attorney fees pursuant to Idaho Code § 12-120(3), Idaho Code § 12-121, Federal Rule of
Civil Procedure 54, and the Promissory Note that was the subject of the dispute.
Idaho Code § 12-120(3) suffices to grant the motion. It provides that the
prevailing party “shall be allowed” an award of reasonable attorney fees in any civil
action to recover on . . . “any commercial transaction.” The statute defines the term
“commercial transaction” to mean “all transactions except transactions for personal or
household purposes.” I.C. § 12-120(3) (1998). “Under Idaho Code § 12-120(3), an
award of attorney fees is appropriate where ‘the commercial transaction is integral to the
claim, and constitutes the basis upon which the party is attempting to recover.’” Blimka
v. My Web Wholesaler, LLC, 152 P.3d 594 (Idaho 2007) (citing Brower v. E.I. DuPont
De Nemours and Co., 792 P.2d 345, 349 (Idaho 1990)).
Here, there is no question that Danish Acres is the prevailing party. Likewise,
there is no dispute that the claim arose out of a commercial transaction that was the basis
upon which Danish Acres obtained a recovery – Danish Acres prevailed on a foreclosure
claim for breach of a mortgage contract. Accordingly, Danish Acres is entitled to its
reasonable costs and fees.
The Court also finds that the attorney fees and costs identified in counsel’s
affidavit in support of the motion for fees and costs are reasonable. “The starting point
for determining a reasonable fee is the ‘lodestar’ figure, which is the number of hours
reasonably expended multiplied by a reasonable hourly rate.” Gates v. Deukmejian, 987

MEMORANDUM DECISION AND ORDER - 2

F.2d 1392, 1397 (9th Cir. 1992). In determining a reasonable hourly rate, the Court
considers the “experience, skill and reputation of the attorney requesting fees,” Trevino
v. Gates, 99 F.3d 911, 924 (9th Cir. 1996), as well as “the prevailing market rates in the
relevant community,” Blum v. Stenson, 465 U.S. 886, 895 (1984).
Once the lodestar amount is determined, the Court “then assesses whether it is
necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr1
factors that are not already subsumed in the initial lodestar calculation.” Morales v. City
of San Rafael, 96 F.3d 359, 363-64 (9th Cir.1996) (footnote omitted). “There is a strong
presumption that the lodestar figure represents a reasonable fee. Only in rare instances
should the lodestar figure be adjusted on the basis of other considerations.” Id. at 363 n.
8. (internal quotation marks and citation omitted).
Here, Danish Acres seeks attorney fees in the amount of $5,619.00 for 33.5 hours
of work completed by attorney Steven Fuller, who charged $170.00 per hour. The hourly
rate charged by Mr. Fuller is comparable to the reasonable hourly rate for attorneys of
similar experience and similar work in this area. Moreover, the total number of hours
billed was relatively small and well within reasonable limits. Additionally, Danish Acres
claim for $173.03 in costs for mailing fees, filing fees, recording fees and service fees is
also reasonable. Finally, the Court notes that Phillips has not opposed the motion.
1

The Kerr factors are: (1) the time and labor required, (2) the novelty and difficulty of the questions
involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is
fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the
“undesirability” of the case, (11) the nature and length of the professional relationship with the client, and
(12) awards in similar cases.

MEMORANDUM DECISION AND ORDER - 3

Accordingly, the Court will grant the motion for costs and fees in the amount of
$5,792.03.
ORDER
IT IS ORDERED THAT:
1. Plaintiff’s Motion and Memorandum of Costs and Attorneys Fees (Dkt. 33) is
GRANTED. Defendant Philips shall pay Plaintiff Danish Acres $5,792.03 in
costs and fees.

DATED: July 24, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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